Delhi District Court
State vs . Anil on 3 October, 2018
Case No. 618/2017 FIR No. 486/16 PS Ranjit Nagar State Vs. Anil 03.10.2018
ORDER : ORAL :
Present: Ms.Suchitra Singh Chouhan, Ld.Substitute Addl.PP for the State.
Both the accused are on bail.
Both accused persons have requested for appointment of legal counsel submitting that they are unable to bear any expenses for defending them. Even the previous counsel engaged by them has refused to proceed with defending them as they are unable to pay the legal charges.
The case IO/SI Jai Pal is present on Notice and submits that during investigation, it had come to in his notice that both the accused persons are financially weak.
In these circumstances, Ms.Poonam Bakshi, Advocate (Office cum Residence : E220, First Floor, Tagore Garden Extension, New Delhi, M.No. 9582390220) present in the court today is appointed as ld.Amicuscuriae on behalf of both the accused persons with her consent.
Contd....2.
: 2 :
Matter was passover for consideration on Charge. Arguments have been heard.
The case was registered U/s 308/34 IPC after information vide DD no. 77B dt. 06.012.2016 was received at the local PS. The persons/injured were taken for treatment in Acharya Bhikshu hospital, Moti Nagar, Delhi. SI Jai Pal Singh and one Constable are reported to the place of incident and the hospital. Only one injured namely Dana S/o Prahlad who is the brotherinlaw of accused Anil was found in the hospital. His statement was recorded.
As per it, his brotherinlaw Anil and his brother Kishore had come to his house on the date of incident at about 07:00 PM. Anil was inebriated. An altercation took place due to the issue of inconvenience to one Dhanni, sister of Dana. Kishore held Dana by his hair and Anil, with an intention to kill Dana, attacked Dana with hammer on his head. However, Dana ducked and head injury was not caused but he was injured on his face.
Ordinarily, on this statement, an FIR U/s 307 IPC ought to have been registered r/w Section 34 IPC.
Nevertheless, ld.Substitute Addl. P.P. presses for Charge U/s 307/34 IPC.
Conversely, ld.Amicuscuriae submits that neither a Contd....3.
: 3 :
Charge U/s 308 IPC is made out nor a Charge U/s 307 IPC would be made out.
It is contended that perusal of entire Chargesheet does not show presence of either intention or knowledge on the part of accused persons to commit culpable homicide not amounting to murder. It is submitted that the injury on the person of victim Dana, as per the MLC on record was merely 'lacerated wound on upper Lip' and has been opined to be "Simple". Opinion on the kind of weapon used is not provided on the MLC. No other injury was found on his person.
It is further contended that this is not a case of attempt to murder as again, besides a bald statement of Dana, there is no other material on record to gather presence of any intention or knowledge on the part of accused persons that the Act alleged against them could have caused death.
I have considered these submissions.
No cogent or convincing reason is disclosed entitling discharge of the accused persons. Further, at this stage of framing of Charge, the truth, veracity and effect of the evidence which the prosecution purposes to adduce are not to be meticulously judged. The Apex Court in a number of cases had held that at the stage of Contd....4.
: 4 :
framing the charges, meticulous consideration of evidence and material by the court is not required; nor the adequacy of the evidence can be seen at this stage as it would amount to premature appreciation of evidence. The same view has been held by their Lordship in Kanti Bhadra Shah Vs. State of West Bengal, 2000 Crl.L.J.746 and Omwati Vs. State through Delhi Admn,. 2001 (2) Crimes 59.
In Soma Chakravarty Vs. State through CBI Crl. Appeal no. 710 of 2007, it is held that material brought on record by the prosecution has to be accepted as true at the stage of framing of charge. Court must apply its mind and must be satisfied that commission of offence by accused was possible, where accused infact committed offence, can only be decided in trial. It is also held that charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exists some materials.
In Criminal Appeal no. 192 of 2010 titled as P.Vijayan Vs. State of Kerala and Anr., it is held that consideration of records and documents at the stage of framing of charge is for limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. Whether the materials at the hands of the prosecution are sufficient and whether the trial will end in Contd....5.
: 5 :
conviction or acquittal are not relevant considerations at the stage of framing of charge.
In the Judgment of Hon'ble Rajasthan High Court titled as Narendra Sharma @ Pappu Vs. The State of Rajasthan and Crl.No.888 of 2000 titled as State of Delhi Vs. Gyan Devi & others , it is held that at the stage of framing of charge, the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor it is for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. The above analysis of the law clarifies the scope the court has while sifting through the Chargesheet and the documents filed alongwith it.
It is informed that a cross case was also registered but charge sheet in it, according to the IO, is not filed so far.
The IO recorded one supplementary statement of Dana U/s 161 Cr.P.C. on 18.04.2017. He was allegedly absconding due registration of cross case against him. The statement is only in respect to seizure of blood stained clothes of the Victim and obtaining his blood sample. Contd.....6.
: 6 :
Besides, it, the IO had recorded two statement of Smt.Dhanni W/o accused Anil who, as per prosecution, is the reason for the alleged incident.
The undated statement U/s 161 Cr.P.C. recorded on inner case diary no.39603 shows that on 07.12.2016, her husband came in drunk condition and started to fight with her. She also got infuriated and picked up a 'Karchhi'. Anil alongwith his brother 'Kishore' went to her brother's house namely Dana (Victim). Dhanni followed them. Once in the house, Kishore held Dana by hair and Anil picked up a Hammer lying nearby and attacked on him due to which he sustained injury on his face.
Supplementary statement dt. 05.03.2017 has been also perused. Both these statements show that Dhanni is projected as an eye witness to the incident but she is silent about the fact that Anil had intended to hit the hammer on the head of Victim Dana.
Thus, there is apparent contradiction between the two statements of the material prosecution witnesses. The Judgment cited above make it a point that though the Court will not enter into appraisal of the evidence proposed to be produced but it will look for primafacie case.
It is absent qua Section 308 IPC as also 307 IPC.
Contd.....7.
: 7 :
At best, a case U/s 323/506/34 IPC might be made out against the accused persons.
Accordingly, both the accused persons namely Anil and Kishore are hereby discharge of the offence Punishable U/s 308/34 IPC or for that matter even Section 307 IPC. Since remaining offences are not triable by this Court, while Exercising Power U/s 228 (1) (a) Cr.P.C., the matter stands transferred to the ld. CMM/West, who may try the case or assign it further in accordance of law to the concerned Ilaka MM. Ordered accordingly.
Both the accused persons are directed to appear before the Ld.CMM/West, THC, on 31.10.2018 at 10:00 AM for further directions.
Ahlmad is directed to send the file complete in all respects before the Ld.CMM/West, THC, Delhi on or before 31.10.2018.
(Manish Yaduvanshi)
Digitally
signed by ASJ05(W)/THC/Delhi
MANISH 03.10.2018 (P)
MANISH YADUVANSHI
YADUVANSHI Date:
2018.10.08
11:30:06
+0530